from the uh-oh dept

We had already noted what appeared to be serious problems with the way the jury decided the verdict in the Apple/Samsung case -- including ignoring prior art, awarding damages on patents not infringed, and an admission of choosing punitive damages, despite instructions that clearly bar such an action. And it seems to only be getting worse. Groklaw points out that Velvin Hogan, the controversial jury foreman, went onto Bloomberg TV to defend himself, but only served to make things worse, by more or less admitting to not understanding how prior art works.

As was discussed in the previous post, the jury initially got hung up on the question of prior art on the first patent (7,469,381 -- better known as the "bounceback patent" -- covering how when you scroll and hit the edge of a "page" the screen "bounces back.") However, in this interview, Hogan explains the "aha!" moment he had that led him to suggest to the jury that the prior art doesn't apply:

The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.

You can see him say this in the video below, around the 3 minute mark:

Basically, he's admitting that he doesn't understand how prior art works. The fact that the software wouldn't run on the same processor is meaningless. In fact, as Groklaw notes, the jury instructions (which Hogan again insists the jury read) note that to find prior art, you just have to show that the invention has already been done or even explained somewhere else. That's got nothing to do with whether or not it can run on the same processor.

Once again, we learn why it's silly to have juries determining patent cases.

facepalm...

So in the jury instructions and during the final statements at no point did anyone actually explain to the jury what "Prior Art" was? Or were they just too dense? I am going to have to go back and read the instructions to figure out what went wrong here. I am sure the Samsung lawyers will probably be doing the same.

Re: Re: facepalm...

Expecting people to *listen to the instructions as they were read to them* was just too much to ask. God forbid the jurors have to read or take things seriously and act like adults when they are chosen to decide a legal case. It's more instantly gratifying to tune the judge out and then make stupid quick decisions: instead of debate, they tabled the controversy to revisit the vote when everyone is tired and not wanting to start over again. Source- the jury foreman in this articles video. All just to go home for the weekend, because why the fuck should jurors care about the greater good when ITS THE WEEKEND.

Re: Re: facepalm...

Mind you this is strictly hypothetical, but if you engineered a patent together, wouldn't you have to know about prior art? I think this guy is trying to [unsuccessfully] cover his ass.

Not necessarily. His patent (http://www.freepatentsonline.com/7352953.html) is for a device similar to a TIVO, two years after TIVO was introduced. It had some differences, but I am not sure how the patent office thought it was novel.

Re: Re: Re: facepalm...

>>but I am not sure how the patent office thought it was novel.

Probably in the same way the patent office thought that the fourth patent granted for how to tease a cat with a laser pointer was novel and different than the first three that it had granted. And also that teasing a cat with a flashlight (also patented) did not constitute prior art.

Re: Re: Re: Re: Re: Re: facepalm...

Runs into patent office to file patent for software for web-controlled laser to tease cat stipulating that my software won't run on the processor your software runs on and vice versa. That totally changes everything.

Re: Re: Re: Re: Re: Re: Re: Re: facepalm...

Re: Re: facepalm...

Thing is that this guy has a direct interest in a legal precedent that justifies patent claims despite the fact that there was prior art (as he practically patented TiVo two years after it hit the market).

If I was Sammy USA CEO I'd have those lawyers fired and find another company to defend me. They should, and could have dismissed this guy but didn't.

Re: facepalm...

From the jury instructions:

>>>
A utility patent claim is invalid if the claimed invention is not new. For the claim to be invalid
because it is not new, all of its requirements must have existed in a single device or method that
predates the claimed invention, or must have been described in a single previous publication or
patent that predates the claimed invention. In patent law, these previous devices, methods,
publications or patents are called “prior art references.” If a patent claim is not new we say it is
“anticipated” by a prior art reference.
The description in the written reference does not have to be in the same words as the claim, but all
of the requirements of the claim must be there, either stated or necessarily implied, so that someone
of ordinary skill in the field looking at that one reference would be able to make and use the
claimed invention.

Re: Re: Re: facepalm...

I wonder why they don't mention "obviousness?" It is true that for a patent claim to be anticipated, each and every element of the claim has to be present in a single reference. However, to be valid a patent claim must also be non-obvious, and that requirement of a single reference doesn't exist in that case.

Re: Re: Re: Re: facepalm...

Re: Re: facepalm...

"so that someone of ordinary skill in the field looking at that one reference would be able to make and use the
claimed invention"

This is what I've always thought was odd... choosing 12 random people out of society means the odds are quite low that a jury will have anyone 'of ordinary skill in the field' of relevance, yet they have to decide what 'someone of ordinary skill in the field' would think.

Re: Re: Re: facepalm...

Well, I'm actually a patent examiner and can say, with no doubt, that 12 people at random cannot judge obviousness (or even novelty). I've seen trained examiners, already 1 or 2 years in house, with PhD's and experience in whatever field, struggle with it, let alone 12 jurors with random or non-existent technical backgrounds with 3 weeks pseudo-experience in assessing prior art...

Re: Re: Re: Re:

Not a lot to be done for it I am afraid. The system ain't perfect, but it's the best one out there.

Is it the best one out there? I'm not so sure. But even if it is, that's no reason to be satisfied with it.

When the justice system results in injustice, should we fix it? Of course, if we're really going to fix the justice system, then there are more glaring and important problems that should be addressed first.

Re: Re: stupid

You've missed the point. How is it that Samsung is liable IN THIS CASE for infringing Apple's patents IN THIS CASE even though Samsung's software will not run on an iPhone? The foreman decided the issue one way to dismiss non-Apple prior art, and then discarded that reasoning a short while later in order NOT to dismiss Apple's prior art. The whole thing smells fishy and I call bullshit on this whole set of reasoning -- I don't believe that's the reason this verdict came out the way it did. I think the foreman and the rest of the jury went in with their minds made up and then just rationalised whatever it would take to get there -- the foreman was very helpful in that regard.

Are juries really so silly?

I don't see how this jury is any worse than the appeals court and its blockhead towers of rationalization explaining why all the world is patentable while novelty and obviousness mean nothing.

Actually they are much less damaging. They can only foul up one case but can not set precedent. Their power to make even this much mess flows from the real villains who made the rules compelling the patent office to hand out monopolies like they were halloween candy.

What would taking juries off patent cases really do? Get us better professional lies instead of obvious gaffes like this? We have the focused professional appeals court and they led the charge creating our patent mess in the first place.

Re:

I don't believe the Constitution guarantees a jury in every civil case, however. I suppose you could have specialized courts at the trial level, just as you have the Federal Circuit at the appeals level (not that the Federal Circuit is infallible).

Re: Re:

Certain questions of law in a patent infringement suit are usually left to a judge to decide -- e.g. claim construction, or what the language of a patent actually means.

That said, I believe the Federal Circuit has read the Seventh Amendment to guarantee a jury trial for patent infringement, insofar as there is a question of fact -- e.g. whether a product fits within the language of the patent as construed by the judge.

Re: Re: Re:

we could still have a trial with a jury, even if it wasn't a jury of randomly selection people. How about software patent cases should have a jury of 12 random professional programmers in the same space as the patent covers. So for example, 12 consumer device software programmers in this case for the software patents and 12 different jurors for the physical design patents, those that work in the mechanical design of portable consumer devices.

Watching the video, I get the sense that this guy (and probably the rest of the jury) really did try to do what they thought was correct under the law. I think that fact, in and of itself, can support Mike's contention that a jury isn't the best arrangement for patent cases. Having an arbiter that understands the nuances of the law better would lead to better decisions, and probably just as importantly more predictable decisions so that companies getting involved in an industry have a decent idea of the bounds of the patents in that field. This case makes it seem kind of like a crap shoot.

Re:

What if the Jury had an impartial advisor. Someone that they could ask about the vageries of the law during their deliberations. Not to ask about the case directly, hopefully that would have been concluded in the court room. I don't know, I have seen some court cases and lawyers do speak a lot of gobbledegook sometimes.

Trial by the ignorant

The comments being made about the alternative to juries -ie professional judges bought and paid for by copyright maximalist interests, are very telling. That said I have personal knowledge of just how ignorant and dense the average jury pool can be, having served on a personal injury case that attempted to assign guilt to the innocent in order to gain an insurance payoff. It was obviously a scam, and yet almost half the jurors were convinced. Think about who serves on juries: smart worldly people get excused, the people who serve are disproportionately the unemployed, retirees, or other marginally worldly citizens.

juries

I don't think it's a bad idea to have juries for these trials. What I do think is a bad idea is having *ignorant* juries.

One of the first things the lawyers (on both sides) tend to do in a case like this, during the process of jury selection, is dismiss anyone who might have technical knowledge relevant to the case. Seems to me that that's the problem right there! Does the law not explicitly specify that jury trials require a trial *of your peers*? The selection process should be the exact opposite: send away anyone *without* knowledge of the technical matters at hand.

Any lawyer who specifically seeks to exclude competent peers from a jury needs to be disbarred. Maybe then we'd see sanity return to tech trials.

Re: juries

Unfortunately I think the old maxim that "a little knowledge is a dangerous thing" comes into play here. When you get people who think they understand the issues, but don't, you have problems. People tend to interpret the case through the filter of their past experiences and biases.

In this case the foreman explicitly says here that he approached evaluating the patents as though they were his own and asking if he could defend them, a process suggested by his own experience filing a patent. If he had instead started from the position of the opposition and questioned whether he could defend against each patent, he might have reached a different decision. But that's not the side he has experienced in the past.

Re: Re: juries

I think the problem here is that this guy is just a jerk. I would view his patent as derivative nonsense. I would be embarrassed to file it myself. I would have been embarrassed to file it myself either in 2002 or 1999.

I would view it as something that either demonstrates me to be a fool or a liar.

I would view these things in terms of how I would go about recreating them. I might also keep this in mind in terms of damages.

If I were forced to assign damages to these patent violations I would base it on the effort required to "invent" them. Perhaps I might estimate the man hours required and multiply that by some standard contract rate for the relevant experts.

Even better...

is it me?

This guy is just a moron. I am sorry that apparently he is in the Tech industry and yet he knows nothing about how the simplest of tech and then lead others to believe as he did. I just can't stand to listen to the rest of the interview.

The idiot is trying to cover his ass and won't admit that he is a fraud. The concept of prior art has to do with designing concepts in two ways.
Filing a mockup of the device ("device" could mean anything as long as it is conceptually drawn on paper) or making the schematics with references to the essential industry standard patents required to build around said schematics.

This is Scary Stuff

WOW....this guy's an idiot and pretty much single handily convinced a bunch of other idiots to award a Billion Dollars to a corporation (which we all know that these awards end up being included in price of future products)based on his own ignorant misunderstanding of "prior art". They should have picked a jury or group of individuals from the technology sector to hear this case. What's really sad is that he starts off with identifying himself as someone who understands technology.....maybe so just not Prior Art or jury instructions. Talk about a runaway jury. This is exactly what is wrong with our patent system. I'm pretty sure Apple is trying to figure out how to lower prices on their products once they get Samsung eliminated from the market being the good industry stewards that they are. As Bill Paxton would say....."Game Over....we're F'd"

so what punishment is he going to get? after all, he was a totally biased (has his own patents) member who influenced others to follow his path rather than examine the evidence and reach their own conclusions. had a 'proper job' been done, maybe Samsung would still have been found guilty but the damages would have been more reasonable. on top of that, Apple may have been shown as the 2 faced arse holes that they are as well!

Crazy

What a joke of a system and process, how can things like this happen, when I read some of the case notes and details I can't understand how some decisions are made... also it's a rather highly important legal issues is it not... by the sounds of things the Jury has no legal idea on any thing, they could not even follow there own instructions on what to do yet alone try and understand law which is at best of times complicated and hard to follow...

How is it that these 'every day people' are able to decide the fate and come up with a dollar value they think is fair when they clearly have no idea on the basics of what THEY are suppose to do and what there responsibilities and function is yet along making decisions for multi billion dollar company's... What a crazy system and process... Sorry no respect and I really feel sorry for Samsung as they are clearly not the only phone company and Apple on the other hand is by no means a company that invented or came up with the idea's... yet some how they manage to patent idea's that they did not even come up with... CRAZY TIMES!

This just in -

To try to make it as easy as possible - I have addressed this in other interviews that I have had - what it amounts to is there has been a big fuss since the deliberation that prior art was not considered. Prior art was considered.

So just quit fussing, youse guyse. He knows what he's doing and you're wrong!

The video embed shows as a YouTube embed on the individual-article page, but on the blog index page it shows as an Insider Chat widget instead. Why is that? It's not the only one behaving that way, either.

Wrong again Mike

Just give it up Mike. All the post-mortem nit picking in the world doesn't change the fact that Sammy obviously ripped off Apple. The nits are just how a patent case is fought, they're not really the point.

Re: Wrong again Mike

A Court in Washington With a Jury

The Board of Patent Appeals and Interferences (BPAI) does not need juries, because it is an administrative court, not a civil court. The patent applicant or patent holder is complaining against the Patent Office for not granting him a patent, or for canceling his patent. At this level, someone who merely supplied information in a Request for Reexamination is no longer a party to the case. A court for examining claims of infringement is, however, a civil court, and it does have to have a jury.

However, nothing in the constitution says that a civil jury has to be in one place. Suppose that there is a Patent Infringement Court, attached to the Patent Office, and probably borrowing judges from the BPAI. It assembles a national jury. Prospective jurors report to the U.S. Courthouses of the districts in which they reside, where they are examined by teleconferencing, to reduce the jury pool to a reasonable number. Depending on circumstances, they may hear the case and deliberate via teleconferencing, or at some point in the proceedings, they may be flown to Washington.

Now, as to the issue of jury qualifications, I would suggest that the jury pool for patent cases be drawn from Licensed Professional Engineers. Licensed Professional Engineers are preponderantly civil engineers. Many electrical and mechanical engineers do not regard it as worth the trouble to become licensed, because their work does not ordinarily involve working directly with the public. At the same time civil engineers have comparatively little engagement with the patent system. The kinds of things civil engineers do are locally particularistic, eg. examining the soil under a particular structural foundation. The technology of civil engineering is comparatively stable, in the sense that new products are not so much better as to justify wholesale replacement. There is no "Reardon Metal." Building a better road, or a better railroad track is mostly a matter of building better foundations. Large sections of the physical plant on which civil engineers work are a hundred years old, and the civil engineer frequently has cause to admire the Roman engineers who built thing like the Pont Du Gard in France, or the Via Appia. The most difficult civil engineering jobs tend to involve working for the government. It is virtually impossible to be an uber-capitalist in civil engineering, given that so much of the critical raw material belongs to the public. The most powerful men, such as Robert Moses of New York, have been civil servants. While civil engineers do not ordinarily know very much about computers or electronics or molecular biology, they do have a considerable capacity to learn such subjects.

Stupid

Bunch of Cavement Evaluate Trains

In the case of this jury, we have 12 people, none of which ever owned a smartphone, evaluating whether two smart phones are too similar. How are they qualified to know? How are they "peers" with the product makers?

How odd, too, that none have smartphones. In the USA, 54% now have them, and I would suspect that number to be higher in San Jose. So what filter removed all smartphone users from the jury in favor of luddites?

If I asked two cavemen to evaluate a claim between a steam locomotive maker against an electric locomotive maker, I'm pretty sure they would see both locomotives as pretty much the same thing, despite the vast differences. From a primitive perspective, they both produce pretty much the same result. Just as this jury could not see the vast differences between the Galaxy UI and the iOS UI.

Re: Bunch of Cavement Evaluate Trains

Wait, what?

If hardware incompatibility means the prior art isn't valid from one platform to another, then the patent isn't valid from one platform to another either, and then Samsung can not have infringed any of Apples patents.

Punitive v. Compensatory (or, is this a 1D10T error?)

Can someone please go to minute 6:30 and explain to me how his updated explanation clarifying that this award wasn't punitive makes any more sense than his first statement that he is trying to explain away?
I'm getting something like: It wasn't punitive, it was to make an example for the industry that if you're found to be infringing, you'll be punished for it. But we're not punishing here. We're just making an example of Samsung.

Potential patent invalidation

From the jury instructions:
>>>
"A utility patent claim is invalid if the claimed invention is not new. For the claim to be invalid because it is not new, all of its requirements must have existed in a single device or method that predates the claimed invention, or must have been described in a single previous publication or patent that predates the claimed invention. In patent law, these previous devices, methods, publications or patents are called “prior art references.” If a patent claim is not new we say it is "anticipated” by a prior art reference. The description in the written reference does not have to be in the same words as the claim, but all of the requirements of the claim must be there, either stated or necessarily implied, so that someone of ordinary skill in the field looking at that one reference would be able to make and use the claimed invention."
Which means that all patents on existing mobile devices have always been invalid since L. Frank Baum pretty much described cell phones and tablets in 'The Master Key: An Electrical Fairy Tale' in 1901, long before the 'brick on a strap' was a twinkle in its inventor's eye!

Prior Art and Immediate Obviousness (to Robbie Walker, #103).

There is a tendency to confuse prior art with immediate obviousness. If you like, prior art is the vocabulary, and immediate obviousness is the grammar. Read the key Supreme Court decisions, KSR v. Teleflex and Mayo v. Prometheus. Computer and software patents are almost always compound patents, because the basic components were invented a long time ago, back in the 1940's and 1950's. This is, such patents routinely recite combinations of prior-art-ed devices and algorithms, and claim the combination. One generally finds that each of these component devices or algorithms is used in the way that it has always been used. The Supreme Court has affirmed that many kinds of combinations are immediately obvious to a Person of Ordinary Knowledge in the State of the Art, that such a person is also a person of ordinary inventiveness. KSR v. Teleflex specifically refers to similar solutions in other domains, as I recall.

For example, it is immediately obvious that, given sufficient memory, any computer can be emulated by a computer program, and that this computer program can be compiled to run on any computer. Circa 1960, IBM solved backwards compatibility problems with a couple of generations of emulator programs, before establishing a standard architecture with the System/360 in 1964. Many people in many places have done emulation. Just off the top of my head, Tracy Kidder describes emulation of a computer in the process of being designed in _The Soul of a New Machine_ (1981). Anthony Ralston's _Encyclopedia of Computer Science_ (1976) contains a short article on emulation,with multiple references. Someone reading these descriptions could be expected to grasp that they applied to computers in general, not just to one particular computer. Circa 1985, I personally developed a paper board game, for educational purposes, in which the player was to emulate a computer, moving around pins stuck in the game board to represent bits, and doing so according to directions from a manual. Velvin Hogan's understanding of emulation is profoundly strange, to put it no higher.

It is immediately obvious that a program which once ran on a big, expensive, and heavy computer can eventually run on a small, cheap, and portable computer. That is known as Moore's Law. I don't see how Hogan could possibly be so ignorant as not to know about Moore's Law. Similarly, a personal computer incorporates a terminal, even though it hasn't been since the Altair, or thereabouts, that the computer and the terminal were in separate boxes. Similarly, there are systematic resource models, such as the OSI network layer model, which have been taught in the schools for more than twenty years.

This is of course inconvenient for Apple, because it means that there are a good sixty years of prior art to draw upon, all the way back to Project Whirlwind. I realize that there are a lot of Apple Fanboys who have never learned to program. Apple products seem to target the kind of customer who doesn't need either a word processor or programming tools, and who communicates primarily via 140 character tweets.

Well, what I experienced with the jury selection process scared the s**t out of me.
Of the 30 some prospective jurors for a murder case, at least 3/4 of them did NOT pay attention to anything, did NOT follow instructions, and generally acted 'stupid' and disrespectful.

I expected the judge to throw some of them in jail for contempt!
I thought, "Damn! I can't believe these are examples of "MY peers". I sure wouldn't want to be on trial for something because I don't believe it's possible to get a fair trial because people are too stupid."